In a classic example of giving with one hand and taking away with the other, the Supreme Court first held that the Irish Times could assert a privilege to decline to answer questions from a Tribunal, but then ordered the paper to pay the Tribunal’s costs. This is, to say the least, a curious and illogical decision, and it is very doubtful whether the European Court of Human Rights would find it compatible with Article 10 of the European Convention on Human Rights.

According to a report in yesterday’s Sunday Tribune (see also Saturday’s Irish Times and the BBC News website) the Police Service of Northern Ireland (PSNI) have been ordered to pay 75% of the costs incurred by Suzanne Breen, Northern Editor of the Sunday Tribune, in successfully resisting the PSNI’s attempt to compel her to disclose her sources. The general rule, subject to the court’s discretion, is that costs follow the event, so Breen might reasonably have expected that the PSNI would have to pay all of her costs, but she seems to be satisfied with the decision that they should pay 75%.

Recall that in Mahon Tribunal v Keena [2009] IESC 64 (31 July 2009) (also here (pdf) (to which I will refer as Mahon Tribunal v Keena (No 1)) the Irish Times similarly resisted an attempt by the Mahon Tribunal to compel the newspaper to disclose the source of a leaked Tribunal document. Again, since costs follow the event (see Order 99 Rule 1 RSC), the Irish Times might reasonably have expected that the Tribunal would have to pay all of their costs; like Breen, they might well have been satisfied with a decision that the Tribunal should pay 75%; indeed, they have accepted a decision that both parties bear their own costs. However, last week, the Supreme Court did not choose any of these options, but instead ordered that the Irish Times had to pay the Tribunal’s costs, which have been estimated at more than €600,000.

It is peculiar that the Court should punish an action that it held was justified by journalist source privilege. In this post, I will look at the logical basis for this decision. In tomorrow’s post, I will look at the issues which arise under Article 10 of the European Convention on Human Rights.

In Mahon Tribunal v Keena (No 1), the Supreme Court held that the Editor and Public Affairs Correspondent of the Irish Times could not be compelled by the Tribunal to answer questions as to the provenance of a leaked document. However, after the Tribunal had sought to determine the identity of the leak, and to ensure that the disclosure of the document itself could not identify their source, they had destroyed the document in question. The High Court (in Mahon v Keena [2007] IEHC 348 (23 October 2007)) looked upon this with such grave disfavour that it granted the Tribunal the order it sought to compel the journalists to answer questions relating to the document. Kelly J (Johnson P and O’Neill J concurring) held that

… the deliberate decision taken by the defendants to destroy the documents at issue in this case after they had received a summons to produce these to the Tribunal and after having taken legal advice, is an astounding and flagrant disregard of the rule of law. …

It need hardly be said, that such a manner of proceeding is anathema to the rule of law and an affront to democratic order. If tolerated it is the surest way to anarchy …

Journalists are not above the law nor are they entitled to create for themselves, where their own particular vocational interest is involved, a reserve into which the law may not go. Neither are they entitled to usurp the function of this Court as happened here. …

The Supreme Court, although allowing the appeal, nevertheless also deplored the journalists’ destruction of the document. In Mahon Tribunal v Keena (No 1), Fennelly J (Murray CJ, Geoghegan, Macken and Finnegan JJ concurring) did “not disagree with the language used by the High Court in reference to the deliberate destruction by the appellants of the very documents that were at the core of the enquiry”, and referred to that destruction as “a wrongful one … deserving of … opprobrium” amounting to “unquestionably ‘reprehensible conduct’ …” (all at [64]).

Although the Supreme Court did hold, rather grudgingly, that they would not compel the journalists to answer the Tribunal’s questions, they have now given effect to their strong disapprobation of the journalists’ destruction of the document by holding that they should pay the Tribunal’s costs of more than €600,000. In Mahon Tribunal v Keena [2009] IESC 78 (26 November 2009) (to which I will refer as Mahon Tribunal v Keena (No 2)), Murray CJ (Geoghegan, Fennelly, Macken and Finnegan JJ concurring) held that

… it was the very act of destroying the document that decisively shifted the balance and deprived the Tribunal of any effective power to conduct an inquiry and, by extension, deprived the courts of any power to give effect to any order of the Tribunal. This act was calculated and deliberate and was performed with that clear purpose in mind. That “reprehensible conduct” determined the course which these proceedings took and was at the root of balancing the issue which the Court had to determine.

In the view of the Court the deliberate behaviour of the appellants was directly related to and was intended to achieve the outcome of the case, which has in fact occurred. … The behaviour of the appellants was such as to deprive them of their normal expectation that the Court would, in the exercise of its discretion, award costs in their favour in accordance with Order 99. The Tribunal was, on the other hand, fully entitled to conduct its inquiry and to seek the assistance of the High Court. The Court will, in these exceptional circumstances, order that the respondents are entitled to recover the costs of both the High Court and this Court from the appellants.

This bizarre conclusion all but undermines the original decision that the journalists did not have to answer the Tribunal’s questions. If the journalists had a privilege to with-hold the document and decline to answer the questions, then they had the privilege, and it doesn’t matter what they did with the document. (On the other hand, if they did not have a privilege, then destroying the document would quite rightly have landed them in serious trouble). The Courts here have put the cart before the horse; in falling over themselves to express their opprobrium, they have assumed that there was something wrong with the destruction of the document, and then thundered accordingly. But there would be something wrong with the destruction of the document if and only if the journalists did not have a privilege. Hence, assuming that there is something wrong with the destruction of the document assumes that they do not have the privilege. However, this is exactly what the court has to determine. So, by falling over themselves to berate the journalists, the courts have already pre-determined the issue to be resolved. That issue is simply whether the journalists have a privilege or not. If they do, then they can do whatever they want with the document, including destroying it. If they do not, they will be in a lot of trouble for destroying it. The point is that we can’t know whether the destruction of the document is a flagrant disregard of the rule of law unless we know whether the journalists can assert a privilege. And if they can assert a privilege, as the Supreme Court had already held that they could, then they could do whatever they wanted with the document, and destroying it could not amount to reprehensible conduct deserving of opprobrium.

I am therefore heartened to learn that the Irish Times is indeed considering an appeal of the Supreme Court’s decision on costs to the European Court of Human Rights in Strasbourg, on the grounds that it is an unjustifiable infringement of Article 10 of the European Convention on Human Rights, protecting freedom of expression. The costs order is justified by the Supreme Court as a punishment for the journalists’ actions, but if the journalists’ actions were protected by Article 10 – as the Supreme Court itself accepted in Mahon v Keena (No 1) – then there was nothing to punish, and there can be no logical justification at all for a punitive costs order.

In tomorrow’s post, having regard to Article 10 of the European Convention on Human Rights, I will consider whether – even if there were something to punish – the use of the costs discretion was appropriate and whether the severity of the order is a disproportionate infringement of the journalists’ rights under Article 10 of the Convention.